Court grants en banc hearing after encouraging plaintiff to appeal

Requests for en banc hearings, in which all members of an appellate court hear a case, are not granted lightly. These hearings expend the court’s resources and often require great effort to secure on the part of appellants. So, when the 6th Circuit panel in Lewis v. Humboldt Acquisition Corp. handed Susan Lewis a road map to such an appeal in its March 17 opinion, employment lawyers throughout the circuit took note.

However, the move wasn’t completely unexpected. The 6th Circuit, along with the 10th, is one of just two circuits that apply a “sole reason” standard in discrimination cases brought under the Americans with Disabilities Act (ADA). In all other circuits, ADA cases apply the Title VII standard—requiring plaintiffs to prove only that their disability was a “contributing factor” in their dismissal. The 6th Circuit, based on precedent set in Monette v. Electronic Data Systems Corp., applies the stricter “sole reason” standard derived from the Rehabilitation Act (see “Monette Malady”). In the 6th Circuit, only a Supreme Court ruling or an en banc hearing can overturn the previous panel’s ruling.

“In a strange footnote, the panel observed that though en banc hearings are not favored, they may be ordered in cases of exceptional importance—including cases like this one where the standard conflicts with the decisions of other courts of appeal,” explains Jeffrey Lewin, a shareholder at Sullivan Hill. “This invitation to ask the 6th Circuit to overrule itself is highly unusual, and that’s one of the aspects of this case that is so fascinating. Usually it’s the losing party who asks the court of appeal to hear a case en banc.”

Two Interpretations

Susan Lewis was employed by Humboldt when, in September 2005, she claimed to have come down with a condition that affected her legs. In addition to a month-long absence, she required special accommodations when at work, including a wheelchair. In 2006, Humboldt terminated her employment following an alleged outburst in which Lewis screamed and used profanity. While Humboldt claims Lewis’ outburst was the sole reason for her termination, Lewis insists that her disability contributed to the decision.

“What the 6th Circuit said was that in ADA cases, a plaintiff claiming wrongful termination is required to establish ‘but for’ causation. That is, the disability is the lone factor motivating the termination,” says Kohrman Jackson & Krantz partner Jonathan Hyman. “Every other circuit except the 6th and the 10th uses a ‘motivating factor’ standard, just like under Title VII.”

When it comes to disability discrimination cases, the 6th Circuit’s interpretation of the ADA in Monette has tied the court’s hands since 1996. When the ADA was enacted, courts were left to interpret what standards best applied, and most looked to either Title VII or the Rehabilitation Act. Most circuits, citing similarities in the language of the ADA and Title VII, applied the more- lenient “motivating factor” standard, but the 6th Circuit, noting substantive similarities and legislative history that suggested the ADA was patterned after the Rehabilitation Act, chose instead to borrow its “sole reason” standard.

The 6th Circuit typically hears very few cases en banc each year (between eight and 12), so its decision to grant rehearing to Lewis is significant. Experts agree that the hearing is a harbinger of change.

Looking to Change

The overwhelming majority of circuits’ application of the “motivating factor” standard and the recent ADA Amendments Act of 2008 may have prompted the 6th Circuit to seriously look for an opportunity to change its standard, experts say.

“Looking at all these factors combined, whenever a circuit is in a distinct minority, it tends to look around and wonder, ‘Maybe we should look at this again given how many other circuits have landed on the other side,’” says Barnes & Thornburg Partner Teresa Jakubowski.

While experts agree the en banc hearing is an excuse to reverse Monette’s precedent, the 6th Circuit judges also could hope to push the issue to the high court.

“There’s two ways to look at it: You can say that they decided to hear it en banc to get the full opinion of the 6th Circuit so if they affirm again, the case would then possibly be better-positioned to go up for a decision by the U.S. Supreme Court to clear the split among the circuits,” Hyman says. “I think the more likely reason is that they want to bring the 6th Circuit in line both with how Title VII is interpreted, and how all the other circuits but the 10th also interpret the ADA.”

For employers, a reversal will mean a more employee-friendly litigation environment in the 6th Circuit. Gone will be the days of relying on summary judgment to throw out ADA cases, experts say. However, for employers that operate nationally, the likely decision will bring the benefit of consistency.

“From a litigation perspective, the fact that the 6th Circuit is potentially going to come in line with the rest of the circuits just kind of makes things more uniform for employers, and certainly makes things more consistent and predictable for employers that have a presence across jurisdictions in multiple circuits,” Jakubowski says.